Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Barton, 2021 ONCA 451, June 23, 2021, the accused was convicted of a firearm offence. The police found a firearm in a planter outside of the accused’s apartment. They used this discovery to obtain a search warrant to enter the apartment. The search of the apartment resulted in the police finding ammunition for the firearm.

At his trial, the accused sought to have the firearm and the ammunition excluded. The trial judge declined to exclude the evidence, holding that even if there was a breach of section 8 of the Charter, the evidence was not “obtained in a manner that infringed or denied any rights or freedoms guaranteed”, within the meaning of those words in section 24(2) of the Charter.

The accused appeal from conviction.

The Ontario Court of Appeal allowed the appeal and ordered a new trial.  It concluded that “the discovery” of the firearm was “causally connected to the Charter breach” (at paragraphs 4 to 7):

Police officers discovered the semi-automatic handgun as a result of a step they had taken to gain unlawful warrantless entry into Mr. Barton’s apartment. Specifically, they moved the planter in the hallway to assist their efforts in breaching the front door. After moving the planter, the officers observed a string protruding from its cylinder. Inferring that the string might be attached to a key that would give them warrantless entry to Mr. Barton’s apartment, the officers pulled the string which led to a bag secreted in the planter. They opened the bag and discovered the semi-automatic handgun inside.

Since the semi-automatic handgun was discovered as a result of a step officers had taken to gain unlawful entry to the apartment, the discovery is causally connected to the Charter breach: see, R. v. Goldhart, [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge erred in finding otherwise.

The trial judge also erred in drawing the conclusion on these facts that the contextual and temporal connections between the unlawful entry of the apartment and the discovery of the semi-automatic handgun were remote and attenuated. We see no basis in the evidence for these holdings.

We are therefore persuaded that the semi-automatic handgun was unconstitutionally obtained. As a result, reference to the discovery of the semi-automatic handgun must be excised from the information to obtain the search warrant.

In ordering a new trial, the Court of Appeal indicated that a new trial was “required to determine whether excision of the discovery of the semi-automatic handgun from the warrant information will lead to a finding that the later warranted search was unconstitutional. This finding could, in turn, have an impact in deciding whether to exclude the semi-automatic handgun itself, since additional Charter breaches occurring during the same investigation can enhance the seriousness of each of the Charter breaches” (at paragraph 9).